Cuba Bound, Part 2

It had been one of Dave Shaw's best trips to Havana. Clear skies. A steady wind. "No worries," as the Key West sailboat captain liked to say. That is, until Shaw pulled up to the Texaco fuel dock at Key West's Conch Harbor on Saturday, December 9, and was greeted by federal agents, who swiftly seized his 38-foot sailboat.

Shaw was cited with failing to inform officials from U.S. Customs, the Immigration and Naturalization Service (INS), and the Department of Agriculture that he was returning from a foreign port. In addition to the seizure of his boat, the value of which Shaw places at about $80,000, he could be fined at least $5000.

Michael Sheehan, a spokesman for the U.S. Customs Service, says agents confiscated 29 boxes of Cuban cigars and 22 bottles of Cuban rum. Although federal prosecutors have opted not to press charges, customs is forwarding the case to the U.S. Treasury Department's Office of Foreign Assets Control (OFAC), which is responsible for enforcing the 1962 Cuban embargo that forbids American citizens to do business with the Castro-ruled nation.

The seizure has brought an abrupt end to Shaw's fledgling effort to expand his local enterprise -- leading snorkeling trips around Key West's coral reefs -- to include "sightseeing" in the waters off the coast of Cuba. (An October 19 cover story, "Cuba Bound," chronicled one of Shaw's trips.)

One of the most visible members of a growing community of American boaters who routinely drop anchor at Havana's Marina Hemingway, Shaw says he is rethinking the cost of defying the embargo. He describes the customs officers who seized his boat as "very polite," and says they allowed him and his partner Peggy Cook to live aboard the boat, which is also their home, for an extra two days before it was taken.

According to Shaw, only two of the cigar boxes and ten of the bottles of rum belonged to him and Peggy. He says he assumes the rest belonged to one of the two passengers who were traveling with him. Officials say they believe six cigar boxes and eleven bottles of rum belonged to the passengers. Neither of the passengers (whose names were not released by customs officials) was charged.

A fellow boater who frequently travels to Cuba (and who asked that his name not be used) believes Shaw's biggest mistake was not reporting to customs on his return. "I always check in," the boater asserts. "I never have any problem. It was like Dave was challenging them to do something."

While the Cuban Assets Control Regulations, which govern the Cuban embargo, present boaters with some wiggle room, federal law clearly states that anyone arriving in the U.S. from a foreign country must submit to a routine inspection by federal agents.

The embargo regulations permit travel to Cuba as long as visitors do not spend money on the island. Because Marina Hemingway occasionally offers free dockage to Americans, boaters who bring their own provisions and sleep on board can plausibly say that they had an expense-free trip. During the past year, 163 boats arriving in Key West have named Havana as their port of departure, according to INS statistics.

Of those boaters, only one was arrested. He was charged with smuggling cigars, not with violating the embargo. Although Richard Sperandio checked in with customs after returning from Havana in August, he failed to inform agents about the existence of 111 boxes of Cohibas, Montecristos, and Romeo y Julieta cigars stowed aboard his 37-foot sportfishing boat. (Sperandio has since pleaded guilty to one charge of conspiracy to import contraband and is awaiting sentencing. His boat was seized by the federal government.)

Ed Horan, a Key West lawyer who represents Sperandio, points out that the stogies confiscated from his client and from Shaw are not contraband in the United States if they were purchased through a third country. "It's only illegal to bring them directly from Cuba," Horan explains. "You can go to any cigar store and buy Cuban cigars."

In a case that more closely resembles Shaw's predicament, a Dutch sailor living in Seattle had his boat seized after he returned to Tampa Bay from Cuba in 1993. Like Shaw, Willem Eickholt was penalized for not reporting his trips to Cuba. Since 1991 Eickholt had been bringing small amounts of humanitarian aid -- powdered milk, vitamins, and boat parts -- to the island.

"In the end they held the boat for eight months, and they couldn't prove a thing," Eickholt grumbles. "There was no due process." Eickholt eventually paid the federal government $1500 in boat-storage fees. He was also forced to spend several thousand dollars to repair the damage wrought to his 51-foot cutter by months of neglect. "I got the boat in shape and I've been doing the same thing [going to Cuba] ever since, and [customs] has been very nice to me," he says, explaining that he now checks in with customs after each trip. "The best way to get yourself in trouble is not to declare."

Michael Krinsky, an attorney who represents the San Francisco-based Freedom to Travel Campaign, says Shaw can ask for an administrative hearing regarding the seizure of his boat and ultimately appeal the case to district court.

If that happens, a federal lawsuit filed by Krinsky on behalf of the Freedom to Travel Campaign may make things easier for Shaw. The suit, which is currently pending in appellate court, challenges the embargo's travel restrictions on the grounds that Cuba no longer represents a threat to U.S. security and that Americans have a constitutional right to travel where they please. Krinsky filed a similar suit in 1984. At that time, the U.S. Supreme Court ruled that the right to travel could be superseded by U.S. national security needs. The Justice Department now maintains that the embargo furthers U.S. foreign policy goals of promoting democratic change in Cuba. Among the activities forbidden by the embargo are any travel-related transactions that have not been approved in advance by the Treasury Department. Spending money in Cuba is explicitly prohibited unless a traveler holds a license from OFAC or is a journalist, an official government representative, or is visiting a family member on the island for emergency humanitarian reasons. (This last is a once-a-year exception.)

Although attorney Krinsky is unfamiliar with Shaw's case, he points out that it should be viewed in the context of the overwhelming violation of the embargo by Cuban Americans living in South Florida, who send millions each year to help their relatives in Cuba. (Before remittances were banned in August 1994, Cuban Americans were sending an estimated $400 million annually to their relatives in Cuba.)

"They're doing it fairly openly, everyone knows they are doing it, but as far as I know, there's no enforcement effort to stop it," Krinsky observes. "Here's the government looking the other way at massive violations of the embargo and then picking out one or two people who aren't Cuban American to prosecute for relatively minor offenses. Whatever one might think about the embargo and the seizing of this guy's boat, when you compare it to the millions of dollars going to Cuba, it really makes the whole thing pretty scandalous.

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